Citation Nr: 1521267
Decision Date: 05/19/15 Archive Date: 05/26/15
DOCKET NO. 12-02 893 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado
THE ISSUES
1. Eligibility for benefits for spina bifida for a child under 38 U.S.C.A. § 1805 (West 2014) based on the Veteran's service in Vietnam.
2. Eligibility for benefits for diseases and defects other than spina bifida for a child under 38 U.S.C.A. § 1805 (West 2014) based on the Veteran's service in Vietnam.
ATTORNEY FOR THE BOARD
Siobhan Brogdon, Counsel
INTRODUCTION
The Veteran served on active duty from May 1952 to November 1979, including service in the Republic of Vietnam from October 30, 1964 to September 12, 1965. The Veteran died in May 2006. The appellant is his biological daughter.
This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a May 2009 rating decision of the VA Regional Office (RO) in Denver, Colorado that denied entitlement to benefits under 38 U.S.C.A. § 1805 for a child born with spina bifida and other diseases and defects.
FINDINGS OF FACT
1. The appellant was born April [redacted], 1964.
2. The Veteran served in the Republic of Vietnam after the appellant was born.
3. The appellant's mother did not perform active duty service in the Republic of Vietnam.
4. There is no competent evidence of record that the appellant has any form or manifestation of spina bifida.
5. There is no provision in the law to provide benefits for children of veterans who served in the Republic of Vietnam who suffer from defects or diseases other than spina bifida.
CONCLUSION OF LAW
The criteria for eligibility to benefits under 38 U.S.C.A. § 1805 for an individual whose biological father or mother is a Vietnam veteran are not met. 38 U.S.C.A. §§ 1802, 1805, 5107 (West 2014); 38 C.F.R. § 3.814 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). In this case, VCAA notice was provided to the appellant in December 2008. However, compliance with the VCAA is not required because the issue involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004). The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable where further assistance would not aid the appellant in substantiating a claim. Wensch v. Principi, 15 Vet.App. 362 (2001); see also 38 U.S.C.A. § 5103A (a)(2).
Factual Background and Legal Analysis
The appellant seeks benefits pursuant to 38 U.S.C.A. Chapter 18 based on her father's service in Vietnam. She maintains that she has multiple chronic physical and mental disorders that are the result of his exposure to Agent Orange in Vietnam or other possible vectors in the many locations he was stationed during his long period of service. Medical evidence has been submitted in support of the claim that the appellant receives of has obtained treatment for many diseases and defects to include left shoulder pain, major depressive disorder, a bipolar disorder, posttraumatic stress disorder, cervical and lumbar spine spondylosis, blood in the stool, unspecified constipation, polyarthropathy, rheumatoid arthritis, migraine headaches, varicose veins, esophageal reflux, cervical and lumbosacral disc disease, thoracic or lumbosacral neuritis or radiculitis, arthritis of the foot, multilevel degenerative disc disease and facet arthropathy, dyspareunia, chronic knee pain, skin fibrosis, compound nevus, and lumbar spine osteoporosis, etc. The appellant has submitted documentation in support of her claim demonstrating that she has been receipt of a handicap placard since 2005.
The appellant's mother has submitted many letters in support of the appellant's claim attesting to her belief in the appellant's entitlement to benefits based on the Veteran's active duty service.
In pertinent part, VA will provide certain benefits, including monthly monetary allowance, for an individual who suffers from a form or manifestation of spina bifida and whose biological father or mother is a Vietnam veteran or had covered service in Korea. See 38 U.S.C.A. §§ 1802, 1805; 38 C.F.R. § 3.814; see also, e.g., 72 Fed. Reg. 32,395 (June 12, 2007) and 79 Fed. Reg. 20,308 (April 14, 2014) (both providing that benefits for birth defects other than spina bifida may not be presumed based on Vietnam-era herbicide exposure of parents). Additionally, VA will provide certain benefits for an individual with disability from certain birth defects whose mother is a Vietnam veteran. See 38 U.S.C.A. §§ 1812, 1815 (West 2014); 38 C.F.R. § 3.815 (2014).
VA's General Counsel has clarified, citing to pertinent medical literature, that the term spina bifida is a type of neural tube defect, which is a category of birth defects that involves incomplete development of the brain, spinal cord, and/or the protective coverings of those organs. Spina bifida is generally considered to encompass three main conditions: spina bifida occulta; meningocele; and myelomeningocele. The term "spina bifida" is commonly defined as referring to a "defective closure of the bony encasement of the spinal cord"; it does not include other neural tube defects, such as encephalocele and anencephaly. VAOPGCPREC 5-99 (May 1999) (internal quotation marks and citations omitted). Consistent with this guidance, for the purposes of Chapter 18, VA defines spina bifida as "any form or manifestation of spina bifida except spina bifida occulta." 38 U.S.C.A. § 1802; 38 C.F.R. § 3.814(c)(4) ; Jones v. Principi, 16 Vet. App. 219, 225 (2002).
At the outset, the Board observes that neither the appellant nor her mother contends that the latter served in the military, to include in Vietnam. Her claim is based solely on her father's military service. As such, a claim based on any military service of the mother does not need to be considered or discussed.
Here the evidence includes the appellant's birth certificate, showing that the Veteran is her biological father. Documentation of record reflects that the Veteran had service in the Republic of Vietnam from October 30, 1964 to September 12, 1965. The appellant was born on April [redacted], 1964, six months before her father had qualifying Vietnam-era service. See 38 C.F.R. § 3.814(c)(1) (3) (2014).
Notwithstanding the former, the Board points out that that only a form or manifestation of spina bifida will qualify for Chapter 18 benefits based on the Veteran's active duty service. In this case, the evidence does not demonstrate that the appellant has ever had had a diagnosis of any form or manifestation of spina bifida or any other spinal cord birth defect. Although she claims that the disabilities she suffers should also be imputed to the Veteran's exposure to Agent Orange or other contagion as the result of his military service, there are no provisions under the law for benefits in this regard other than for spina bifida. See 38 U.S.C.A. §§ 1802, 1805; 38 C.F.R. § 3.814; See also 72 Fed. Reg. 32,395 (June 12, 2007) and 79 Fed. Reg. 20,308 (April 14, 2014).
For reasons cited above, the appellant does not possess the requisite criteria to meet the eligibility requirements for benefits purposes under Chapter 18. The Board acknowledges the Veteran's long service to his country. However, the Board must apply the law as promulgated and is bound by VA regulations. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (providing that the Board must apply the law as it exists and is not permitted to award benefits based on sympathy for a particular appellant). Without the qualifying conditions, there is no legal basis on which to grant benefits under Chapter 18 in this instance. In a case such as this one where the law and not the evidence is dispositive, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the appellant's appeal for entitlement to benefits under Chapter 18 based on her father's service in Vietnam must fail and is denied.
ORDER
Eligibility for benefits under 38 U.S.C.A. § 1805 based on the Veteran's service in Vietnam is denied.
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DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs